March 5, 2007

Here is a PDF of the letter Professor Leonard Kaplan sent to the Dean of the law school and made public today. I think the letter is a creditable account of what he really did in the class -- which we discussed here and here. Read the whole letter, and I think you can see what it was that students, hearing things through the static of their own emotions, misunderstood. Here's Kaplan's conclusion:

Many of the statements attributed to me in press accounts and emails are hateful. Although I strongly believe in academic freedom, I do not seek to cloak my statements in this protection. Had I made the hateful comments wrongly attributed to me, I would repudiate them without hesitation. I did not make them. As both a matter of personal inclination and my professional training as a clinical psychologist, I try my best to bring human empathy to bear in my vocation as at teacher. However, this experience and the compounded misunderstandings that have resulted from it reinforce my recognition of the limits of language, as well as law, to bridge certain gulfs. I have come to a new awareness of how the statements I did make could be misunderstood and of the pain that this experience has caused. I acknowledge that pain and regret the part that my own limitations played in contributing to it.

I hope students can engage with this account and reconcile with Professor Kaplan, and that we can come together as a scholarly community again. I think the key mistake was to hear statements that presented sociological information about groups of people as if they were stereotypes to be applied to all the members of the group. It needs to be possible to talk about demographic information in the real world, especially if we are to continue to be a school that teaches what we like to call "law in action." It would be a terrible thing if the fear of misunderstandings chilled discussion of sociological information, and if law professors were to retreat into the discussion of law in a more abstract or doctrinal way.

It’s so much easier to skip the subject [of race] altogether, to embrace a theory of colorblindness or to scoop out gobs of politically correct pabulum. It’s only when you challenge the students and confront them with something that can be experienced as ugly — even if you’re only trying to highlight your law firm’s illustrious fight against racism — that you create the risk that someone may take offense.

It's desperately important to come back to a place where we can talk about race in the classroom. I understand that people are sensitive and that there is so much potential for hurt feelings, but think of the alternative! The grotesque prejudgment and pillorying of Professor Kaplan is something that everyone who cares about teaching about race and teaching law and society must look upon with horror.

Our social discussion on race has thundered off the rails into the wilderness.

We can have set-asides, preferences, committees, white guilt, presumptions of bias, bid preferences, and even radical bar association notions of school admissions and firm hiring policies...

...but if someone wants to raise hell and make assorted accusations based upon "historical" notions of privilege creating a "hostile" environment, all based upon hearsay and without a first-hand report, we've gotta let 'em rip the place apart.

Although it makes sense in a way. If someone's unable to compete, shouldn't surprise us they are unable to defend themselves in the arena of ideas.

Pure class. He was probably right to wait until now to release it (not just because drafting these things takes time).

If he released something like this too early, the students would have responded to it to try to keep their story alive. People are ready to get over it now, so any critical response will be ignored. It's over.

It will probably never be over for Professor Kaplan. As Jeremy Freese noted on his blog, the AP headline about Kaplan's letter is:

Wis. professor acknowledges remarks about Hmong caused pain

To a casual observer, this headline appears to confirm the charges. Most people, particularly those not in Wisconsin, aren't that interested in the subject, or comfortable with it, so they may just pass on the details and assume the worst. Professor Kaplan's reputation has been irrevocably damaged by people appear to have acted with actual malice.

As for the law school dean, he could use a backbone, but those are in short supply among contemporary college administrators, and with good reason. [See Summers, Lawrence H.]

I come from a House of very rich brown people - House Lambada. We wear white because it accentuates our beautiful brown skin. We treat our servants very badly. I mean, we beat them and stuff. I am not proud of this, but it doesn't really bother me either, because I am privileged and bored and reckless, but also charming.

I am not a racist, but I am a snob. I don't think you come from a good House, Dave, because you lack charm and wit, so unfortunately, if I met you on the street, I would have my servants move you out of my line of sight, because your lowliness would disturb me.

The UW Law School community must be so thankful that the Dean didn't let this incident get completely blown out of proportion and leave a lasting impression among the media that a blatant racist is amongst its faculty.

I don't see that he did anything wrong. But something else bothers me. Is this in any way a common sort of law school class at UW? I graduated from a small private west coast law school almost 30 years ago, and we never had any classes anything like this. First year through third year we read casebooks and studied cases. Soc classes were in the Soc department. Nothing against it, in fact one of my undergrad degrees is in sociology, but it's a separate and different academic discipline. What kind of law school education is this?

kaplan's "ironic" remark about rape seems tasteless, his comment about perhaps the hmong being better in colorado is idiotic. on the whole, though, his comments seem fine and were blown out proportion (and way beyond thier meaning_ by some dumbass students, followed by spineless administrators kowtowing to their silly bleating.

i will note that kaplan states that if he had made the comments attributed to him, they would have been "hateful" and he would have "repudiated" them immediately. ms. althous, on the other hand, blathered nonsense like "the quotes are cruelly torn from the teaching context" ...

If you want to donate money to Inuit horsebreeders or establish scholarships for Kyrgyz stamp collectors, have at it.

But it you think government should award a variety of windfalls to certain ethnicities and races while placing whites in a position of presumed guilt -- well, let the resistance begin.

If I'm racist for believing that awards, jobs, and positions in public institutions (or promoted by them) should be awarded on merit, then the definition of racism has evaded my limited mind.

And if I'm a recipient of white privilege, it certainly ain't worth what it used to be.

But back to the situation at hand. Law students learn early to use authority and avoid naked emotional pleas. Those who fail at both aren't fit to have clients, and law professors are the last measure of defense against such future injustice.

It looks like UW has stumbled over a teachable moment, but will manage to pick themselves up and move on without learning anything. You do not encourage healing by picking at the scab. You do not build an inclusive society by obsessing over people's race or background. Althouse has said that she hopes that people will continue to engage with these issues... which is odd since they have no valid place in the law; they encourage people to form isolated groups full of grievance; and, lastly, they provide manifest ways for people to get hurt feelings. Doesn't sound like something one would want to continue doing.

Does Prof K have the Mark of Cain? Or is this carefully constructed apology & explanation enough to put this to bed?

Will the pot bangers be out for his scalp?

I see already from one response to this comment by Prof Althouse that the AP headline about Prof Kaplan's letter is:

Wis. professor acknowledges remarks about Hmong caused pain

I agree with the responder that “To a casual observer, this headline appears to confirm the charges.”

Is this to be the template of apology/apologia for every instance of what seem to be just hurt feelings? If so, I suspect that each prof will get a similar headline.

And I suspect the injustice collectors will see his letter as a “He said, they said” & find the students’ version more credible.

And spineless administrators & smug teachers will say: “couldn’t happen to me” or “of all the teachers in all the schools in all the world, we knew that something like this would happen to a loose cannon like Kaplan.”

And what did Prof Kaplan say exactly? It seems to be an apology/apologia for his not knowing what he now knows, having had his consciousness raised by some students who might have been hurt by what they thought he had said or meant due to the “limits of language, as well as the law, to bridge certain gulfs” (note switch to passive voice & placing of blame on inanimate concepts), but which he, of course had never said or meant, though he now has a “new awareness of how the statements [he] did make could be misunderstood and of the pain this experience has caused.”

"Althouse has said that she hopes that people will continue to engage with these issues... which is odd since they have no valid place in the law; they encourage people to form isolated groups full of grievance; and, lastly, they provide manifest ways for people to get hurt feelings."

I think that you are on to something here.

And maybe what you said ties in with my characterization of some smug teachers (I'm not implying that you are smug) saying something like this:

“of all the teachers in all the schools in all the world, we knew that something like this would happen to a loose cannon like Kaplan.”

Or maybe all U. Wisc. Law courses are like that:

The Rule Against Perpetuities & how it affects the property aspirations of minority group immigrants.

Real Estate Law and the effect of Tammany Hall on landlord-tennant relations with Irish immigrants (who came from farms & were left to fend for themselves in the urban maw, Prof Kaplan).

Criminal Law & the effect upon Italian immigrants – wait, according to his letter, Prof Kaplan mentioned Jewish criminals to his class!

I am a good friend of one of the students involved in this controversy and while I can appreciate your defense of Professor Kaplan and of the broader debate there is another side of this story not being told, at least not accurately. That of the Hmong students and their intent:

The Hmong law students initially met privately with Prof. Kaplan to resolve what had happened in class. They were not seeking an apology; they wanted an acknowledgment from the Professor as to how his comments were taken on an emotional level. The fact that they sought common ground instead of debate seemed commendable.

The meeting, however, did not go so smoothly. While I was not at the meeting I can say that the emotional response the students were looking for was not met by Prof. Kaplan, judging by their demeanor when they spoke to me. This was also their intent when they organized the open forum, which, obviously, also did not go smoothly.

Neither your blog nor your NY Times piece examine why these students would come forward. In fact, from my perspective at least, you seem a bit dismissive of their concerns, implying that they are unlawerly and immature for not being able to handle inflammatory remarks.

Leaving aside the issue of how well-qualified a white professor is to judge the appropriateness of a minority student's response to an inflammatory remark, I question your vision of what a law school should be, namely that emotion and the accompanying social skills are not part of the legal profession and therefore have no place in a law school.

How many clients would be best served simply by having a lawyer listen and acknowledge their story so that later they would be ready to listen as he explains why their claim is frivolous? How many crime victims lack closure because they had no say in the way the criminal that attacked them was punished? How many family inheritance disputes could have more easily been resolved had the drafting lawyer sought to understand each family's emotional complexity?

Social skills and emotional intelligence are important abilities for lawyers to draw on, maybe not for law professors in their ivory towers but for people in the real world. The irony of this whole debate is that much of the controversy could have been avoided had the two sides been able to sit down and talk like ordinary people do. Unfortunately, it is all too often that lawyers and law professors are quick to draw their legal sword but slow to truly understand and, tragically, sometimes the results that could have been avoided become reality, to the detriment of all involved.

In one of the Supreme Court's defamation decisions - when the court was on one of it's power-trip legislative modes, rather than in a constitutional mode - the court said, in effect, we're going allow a lot of defamation to go without a remedy, in order to make more room for free speech. Don't have the name of that decision offhand, but I bet Miss Althouse does.

To put it in terms that would suit our elevated constitutional discourse, the Supreme Court's modern defamation decisions are a load of crap. The 1st Amendment was enacted against the backdrop of common-law defamation, and there's no way a reasonable person helping to enact that Amendment would have imagined these modern court-imposed restrictions on that cause of action when the defamatory statement is a matter of public concern.

That's not to say that if those decisions disappeared that matters such as the present dispute would typically be resolved in the courts. No, much more often, it would cause the pertinent actors - here, the students and the newspaper - to better regulate their behavior and not defame in the 1st place.

Final point. In many court systems, and I think in the federal system too - go onto Pacer and take a look - defamation suits are classified in the Personal Injury category, along with assaults, battery, etc.

I think that's right. Except that it's an extreme sort of personal injury; a lot of people - rational people - would rather lose their right arm than be commonly known in the community in which they live and work as a racist.

As a normative matter, you are suggesting that someone who has his comments misinterpreted because of an EMOTIONAL filter personal to the recipient of the communication OWES that recipient something.

You are suggesting some sort of right not to be offended, and to seek redress even if your own mores are hyper sensitive.

I cannot agree nor countenance it. Whatever your friendship with the students in question (who, by the way, you ought to go ahead and name just as Mr. Kaplan has his name out there), their actions speak in my view to their intention. And it is clear that at some point, having not received the "satisfaction" they wanted, they set out to destroy this man.

For shame.

(Note: I am not the same person as the "Brian" above... just the same name).

As a 1999 graduate of UW Law, I think that the critical comments above from Zeb Quinn, Mark and From Inwood have a lot of merit. On other threads I suggested that budding lawyers should have a thicker skin and the nerve to proactively challenge their professors in class when they make dubious assertions (as opposed to getting all offended and proclaiming their grievances to the media), but there would be no place and no need for such challenges if professors focused, as they should, on the actual law and the Socratic method of teaching the law (as opposed to, e.g., sociology and public policy).

On the other hand, I don't appreciate "ultimate lawyer"'s disparagement of the clinical faculty. In my view, while law schools in general could do with much less subjectivity and philosophy, they could also do with more practicality. In fact, one year of sitting through law school lectures is probably more than enough to learn to "think like lawyers."

"they wanted an acknowledgment from the Professor as to how his comments were taken on an emotional level."

Oh dear! Let me run and get a couch for you to faint upon, O vaporous students! You have been affected on an emotional level? Ye Gods! And having been so affected, you were denied that sacred modern right, of an acknowledgment for your emotional experience!

In all seriousness, what sort of shrinking violets is the law school harboring? I was briefly tempted to suggest, given their tender emotional natures, that the students in question transfer into art school rather than law, but upon reflection I realize that they'd be weeping and shuddering on the floor after their first critique in my class. You can have them! I'm sure they'll make fine lawyers. Or something.

Are you suggesting that Prof Kaplan committed a wrong by failing to meet the emotional needs of his students?

Prof. Kaplan's professional obligation was to treat the students with respect as thinking beings - which from the accounts of the meeting available through the published stories he seems to have tried to do. That he did not, as you suggest, meet their emotional needs is utterly beside the point. The suggestion,frankly, makes me despair. Further, nothing in your description of a properly empathic law faculty (God forbid) would follow even if he had forged an emotional bond with his students in this case.

However, you are wise, I think, to leave aside "the issue of how well-qualified a white professor is to judge the appropriateness of a minority student's response to an inflammatory remark" since you would also have to leave aside the question of how well-qualified a minority student is to judge the appropriateness of a white professor's in class remarks.

"As a normative matter, you are suggesting that someone who has his comments misinterpreted because of an EMOTIONAL filter personal to the recipient of the communication OWES that recipient something."

You are overgeneralizing. In the best of lights, the Professor made use of extremely negative stereotypes to prove a point. In the heat of moment its easy to see how those comments could be seen as racist or derogatory by someone who is a member of the stereo-typed group.

Not ALL comments need an explanation but I'm pretty sure these ones do given their severity and the history of racism in this country and the history of racism in Wisconsin against the Hmong. Perhaps you have no context.

Also, you assume a lot when you conclude that their motive was to seek revenge against the professor at some point. What inside knowledge do you have that allows you to draw that conclusion? Were you at the meeting? Have you talked to the people involved? Or are you just flaming?

"In the heat of moment its easy to see how those comments could be seen as racist or derogatory by someone who is a member of the stereo-typed group."

But the "heat of the moment" died down, didn't it? Why didn't rationality return. Also, as I understand it, one of the main students involved in this grievance orgy wasn't even in class that day. Was the "heat of the moment" so hot that it singed her all the way back in her dorm room?

I don't think anyone was really suggesting that the students pursued Kaplan because they wanted "revenge". We were suggesting that they pursued Kaplan because they have spent their lives steeping in the bitter tea of racial grievance and are so emotionally fragile that they shatter at the slightest hint of conflict with their world view.

Am I the only person who is entirely disappointed in Professor Kaplan's letter?

The first couple of paragraphs seemed to hold so much promise, then at the end he just collapses into a mealy-mouthed conglomeration of regrets and hurts and limitations and other essentially meaningless groveling-signifiers.

Damn, but I wish at least once someone in a position like this would just stand their frackin' ground.

Michael: George Anastaplo stood his frackin' ground. He did it to the Illinois Bar when he told them he believes in the right to revolution and wouldn't say whether he was a Communist. He did it again when this kind of thing happened to him as a law professor.

Everybody calls him a gadfly. It takes gut and an ability to live without the esteem of the academic hive. Few people have it.

The sad thing is, not having been in this particular class or the subsequent office meeting and thus having no way to know what was actually said and how it was said, but having been a former student of Kaplan's and recalling that he was awfully prone (and such propensity is not without fault) to saying things that appeared gratuitously callous (and not just to the hypersensitive), I'm ready to "believe" that what he said in that class may very well indeed have been objectionable and ill-considered. I just think the offended folks should have objected accordingly, rather than making a federal case out of it.

It's unfortunate that the overreaction of these students, and the accompanying perception of a threat to academic freedom, overshadows what may have been a legitimate gripe.

With Althouse and the rest of the faculty behind him, I'm sure Kaplan will come through this with flying colors. And overall I liked Kaplan, and wouldn't want him not to come through it. But I'm going to refrain from judging the students too harshly and dismissing them too lightly, acknowledging my ignorance of so many of the pertinent facts.

Oh, and uwlawstudent, any number of us are quite certain, just from having observed grievance industry shakedown artists like Jesse Jackson for 40 years, that a major motivator for these students and you is to profit from the incident, either thru direct shakedown cash or with a taxpayer-funded job in UW's new Hmong Sensitivity Office established as a result of this incident.

The truly idiotic thing about political correctness - which is what all this worry about being "sensitive" is after all - is that intelligent conversation about matters of race, ethnicity and the like will cease, and the only people who will discuss the topic are the bigoted and hateful who don't care a fig for offending and who will dominate the discussion.

One is reminded of Gregor von Rizzori's comment in "Memoirs of an Antisemite" that the one truly unforgivable thing Hitler did was to make it impossible to discuss the Jewish Question.

I am always amazed at how some smart and educated people can have no common sense. He should have realized that saying anything remotely derogatory about any minority ethnic group would bring him pain no matter what the context or legitimacy of the statement. This is the world we live in and it's a crying shame.

I do want to say something about this comment though:

Leaving aside the issue of how well-qualified a white professor is to judge the appropriateness of a minority student's response to an inflammatory remark, I question your vision of what a law school should be, namely that emotion and the accompanying social skills are not part of the legal profession and therefore have no place in a law school.

Translation: Waaaaaaa, you can't possibly understand our pain. You hurt us with your facts, dammit, and we are emotional crybabies and we need you to give us a cookie, wipe our bottoms, and buy us a new toy or we will make your life miserable.

I am simply amazed at UWLawStudents comments about the students wanting an "acknowledgment from the Professor as to how his comments were taken on an emotional level."

What kind of law student desires emotional responses from professors? That certainly isn't what I came to the law school for. I've suggested that the offended students didn't really come to the law school to be lawyers. This kind of crap furthers those suspicions.

As I've said to others when discussing this incident, these kids need to grow up. They need to grow up right now.

“We were suggesting that [these students] pursued Kaplan because they have spent their lives steeping in the bitter tea of racial grievance and are so emotionally fragile that they shatter at the slightest hint of conflict with their world view.

Qwerty

Another pithy & apt comment:

"the issue of how well-qualified a white professor is to judge the appropriateness of a minority student's response to an inflammatory remark"…would leave aside the question of how well-qualified a minority student is to judge the appropriateness of a white professor's in class remarks.”

But then I see that we’ve all been dismissed by uwlawstudent as having no “context” “given [the] severity [of the Prof’s words] and the history of racism in this country and the history of racism in Wisconsin against the Hmong”.

Wait, I get it: put the student’s words in context & take Prof Kaplan’s words out of context. Does Orwell teach at UWiscLaw?

Mike 2:35 You ask: [Are you] the only person who is entirely disappointed in Professor Kaplan's letter?

I thought I had indicated my less-than-enthusiastic feelings about the letter. (I did think the reference to his Jewish mother was a nice contextual touch, however.)

Kevin Lomax: You said that you were “simply amazed at UWLawStudents comments about the students wanting an ‘acknowledgment from the Professor as to how his comments were taken on an emotional level.’ " Well, just read his apology/apologia letter. The students got just that. That’s what Mike is saying clearly & what I was implying. Are we all better off now? Are Profs Althouse & Kaplan surprised at the real news Headline:

"It's desperately important to come back to a place where we can talk about race in the classroom. I understand that people are sensitive and that there is so much potential for hurt feelings, but think of the alternative! The grotesque prejudgment and pillorying ...."

Prof. Althouse, I couldn't agree with you more. Unfortunately, the legal framework created in the wake of the Meritor Savings Bank case makes employers just as guilty of creating such an atmosphere as you observe on the school campus. "Employers" are where a lot of us work and where social mores are learned. No one wants to get sued. The company line is "shut up about race, gender and similar matters or get fired."

So the whole damn country is in a PC rut. WE have to gut the law first to get out of it.

HahahahaThe grotesque prejudgment and pillorying of Professor Kaplan is something that everyone who cares about teaching about race and teaching law and society must look upon with horror.

And then all you people criticize the students for overeacting!

Also, all you need to know is in his one-sided "who me?" missive.

To point out one hilarious part, why didn't the US settle the hmong in the mountains-it's their natural habitat! Just like my drunken forefathers from the emerald isle were placed in treeless fields of heather and grass so that they could get adapt to the alien world of North America.

Ann obviously has grown to hate youth and all it's attendant naivety, but as far as analysis or news or reasoning this is on par with the vegan socks and sandals crowd she loathes.

Richard FaginAll of what you say is true, but, although my area of legal expertise is not personell, er, HR matters, I would think that this situation is deeper than the good old boy atmosphere which horrified SCOTUS in your Bank case. (And while you’re at it don’t forget the Seindfeld incident in the catalog of horrors.)

As both blackjimmy & I have noted, for one thing, by his own admission, Prof K, gratuitously, it would seem, commented negatively on the US govt settling Hmongs in Wisconsin rather than the Colorado mountains, whereas jimmy’s & my ancestors were left in the urban jungle though they were simple mountain folk (mine, unlike blackjimmy’s were not drunks; not stereotypical!). This is the kind of expression which gets Profs, Historians, TV Talkingheads in trouble because it is so easy to misunderstand. Even the GEICO caveman could understand such condescension! For instance, many Profs, Historians, TV Talkingheads seem to comment as does jimmy on the Irish immigrants’ predilection towards “the creature”. I resent that. (I assume that jimmy was being ironic, but, in a classroom setting, some, er, unnuanced listener might take umbrage at the universality of jimmy’s words.) Since the Irish are not an important reference group (in Andy Greeley’s phrase), this stereotyping goes unnoticed.

Yes, now that I’ve seen what Prof K says he said, while I defend his right to say it, I, & I gather, blackjimmy, think that that’s asking for trouble & is indefensible on that ground alone. Moreover, it’s an unscholarly thing to say, which leaves him open to those who defend free speech in general but look for ways to disassociate themselves from what they see as “loose cannons”. Also, the reference to his Jewish mother in Prof K’s letter seems to me to be pandering to Jewish readers. Unworthy.

uwlawstudent, your sympathy for your friends is clouding your judgment. I would kick you off my jury panel immediately. In any event, a public denouncing was not a fair or lawful way to salve their hurt feelings. But I'm sure Moua and the students will soon give interviews and allow themselves to be questioned about the incident, right?

You answer Ann's comment about being able to "talk" about race in the classroom as follows.

"Seems to [you, Mike] that was the source of all these problems. People seem to take it as given that talking about things fixes them. I suggest that assumption is unsubstantiated."

I agree with all your points. Colleges are not in the business of talking. That's for the cafeteria, Starbucks, or Joe's Bar; especially for the glib. Colleges are in the business of communicating serious “larnin”. Assuming that there is some value to a law student in taking in law school what seems basically a college-type Social Science course (not a derogatory comment on such a course qua course), as opposed to, say, a course on the Administrative Procedures Act, then such course should be taught on a higher plain than what seems to be Prof Kaplan's unsubstantiated personal viewpoint as to where Hmong immigrants should be sent initially or what he told his mother about Jewish criminals.

It's rather an unproductive environment, though, not surprisingly, injustice collectors might, as they appear to be trying to do here, attempt to elevate it into a hostile environment.

"...but if someone wants to raise hell and make assorted accusations ... we've gotta let 'em rip the place apart."

No, we don't. We have Duke Lacrosse now.

For the first time in our lives we can defend our character from those who would baselessly slander us with their unprovable accusations of racism and sexism based on things we never did at a time before we were even born.

I will never again stand accused of racism without standing my ground and defending my innocence, or at the very least asserting the comparatively greater guilt of my accuser.

What they did to the Duke Lacrosse team is unforgivable; therefore they lack the moral authority to forgive. The days of obsequious self-abasement are over, for what can "sensitivity training" possibly mean in the post-Duke-Lacrosse era when the self-appointed "sensitivity trainers" have themselves become greater monsters than the alleged wretches to whom they offer their hypocritical absolutions?